January 25, 2016

Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?

The question in the title of this post is prompted by this new article from The Hill reporting on the Supreme Court's denial of cert in a Pennsylvania case involving a blanket Eighth Amendment attack on the death penalty. Here is the article's discussion of the matter:

The Supreme Court announced [today] that it would not hear a case challenging the constitutionality of the death penalty. The appeal was filed on behalf of Shonda Walters, who was sentenced to death in May 2006 for murdering her next door neighbor with a hatchet and stealing his car.

The U.S. Supreme Court of Pennsylvania for the Eastern District upheld the lower court’s death sentence, saying the court found the evidence sufficient to support her conviction for first-degree murder. In appealing the decision to the Supreme Court, Walters asked the justices to weigh in on whether the imposition of the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court did not give any statement supporting or dissenting from its decision to reject the case.

Court watchers have been expecting the justices to take up the constitutionality of the death penalty in light of a dissent by Justice Stephen Breyer last year. Experts said Breyer’s dissent provided a blueprint for a broad challenge to capital punishment.... The court appears to be waiting for the right case to weigh in. The case that was declined on Monday is Walter v. Pennsylvania.

I know that a lot of folks eager to have the death penalty completely abolished in the United States are ever hopeful, especially in the wake of Justice Breyer's Glossip dissent, that the Supreme Court will consider anew a wholesale Eighth Amendment challenge to any and every death sentence. But I have always considered quite significant the fact that Justice Breyer's dissent in Glossip was joined by only one other Justice; moreover, just last week every member of the Court except Justice Sotomayor voted to reinstate a number of Kansas death sentences as consistent with the Eighth Amendment (as blogged here).

I fully understand why Justice Breyer's dissent in Glossip is now prompting many capital defense attorneys to raise and seek to preserve an Eighth Amendment broadside attack on the death sentence given to his or her client. But, especially after the Supreme Court's most recent capital case work from Kansas and elsewhere, I am one "court watcher" who does not expect this kind of claim to be taken up by the Justices anytime soon.